Edwin Ogba V. The State (1992)

O. I. AKPATA, J.S.C. 

By Section 33 (6)(e) of the Constitution of the Federal Republic of Nigeria 1979 every person who is charged with a criminal offence shall be entitled to have without payment the assistance of an interpreter if he cannot understand the language used at the trial of the offence. The main question which arises in this appeal in the light of this Constitutional provision is whether it is obligatory on a trial Judge to record the fact that an accused who did not understand the English language had at his trial the assistance of an interpreter if in fact he was provided with such assistance. Put in another way, is there a presumption of regularity if there is nothing on the record to show that the accused had the assistance of an interpreter

The appellant as an accused, was charged, tried and convicted of the offence of murder at the Umuahia High Court, and was sentenced to death by hanging. His appeal to the Court of Appeal against his conviction and sentence was dismissed. He has now appealed to this Court.

The conviction of the appellant in the High Court was based mainly on the evidence of PW.5, Doctor Madukwe lzuka who performed a post mortem examination on the body of the deceased, Okoro Onyeador; PW.7 Godson Okereke into whose house the deceased ran immediately after he had been attacked; and the statement Exhibit 2 made by the accused in English and taken down in English by PW. 4, Police Sergeant Adewusi Adebowale.

It was the case for the prosecution at the trial of the accused that on 14/6/81 at about 7.30 P.M., when the deceased ran into the sitting room of PW.7, he was soaked in blood and was shouting “I am dying, I am dying”. He disclosed to PW.7 that Edwin Ogba was responsible for his plight. The appellant is Edwin Ogba. According to PW.7″ Blood was rushing from his body. Blood even rushed to the floor of my parlour. He was very weary and still saying he was dying.” After fruitless efforts to get the deceased attended to by a doctor in a number of hospitals, PW.7 succeeded in getting one Dr Ezeikpe at Alaoma hospital or clinic to do so. When the shirt the deceased had on was removed, PW.7 saw wound on his arm and stomach. According to PW.2 Marcus Nwankwo, a relation of the deceased, the doctor at Alaoma hospital or clinic decided to operate so as to find out if broken pieces of bottle were in his stomach. Before he could do so the deceased died.

The incident was reported to the Police. A team of Policemen, including PW 4, went to the house of the appellant where he was arrested and taken to the Police station where he made the statement, Exhibit 2. In it he stated thus:

“yesterday evening 14/6/81 between 8 p.m. and 9 p.m. I was going along Uzuakoli road when I got to Orlu Street junction there was a motor man who came there with a speed. I defended myself by (going) jumping the gutter, there was a man and one other man they were two. I do not know them before and I don’t know their names, one of them was discussing with the other one that, is this not this one who killed his father I was annoyed and I abused the man, the man who was staying with the man that I was abusing slapped me, then I fought with the man. I carried two bottles and broke them together I used them to defend myself when the other man carried a jack from his motor and wanted to beat me with it but he did not beat me with it. It was by the time I broke the two bottles together the pieces meet the man I was fighting with. I did not chook him directly with the broken bottles I was holding in defending myself. At that time, the man who carried jack said he was going to call police for me, then I myself entered motor and came to the Police station to report that, somebody was abusing me on the road that I was the person who killed my father. I did not tell Police that I wound anybody because I did know that the man gets wound. I did not know the number of the motor. The man who was fighting with me flog me with a stick. I have not known anyone of them more than that yesterday 14/6/81. (see the other man who carried jack, I can identify him. Many people gathered there but I don’t know any of them. It was when I got to the Police station I was told by Police that the man I fought with has died.” The corpse of the deceased was removed from Alaoma clinic to Queen Elizabeth hospital, Umuahia where PW.5, performed a post mortem examination on the body on 15/6/81. The corpse was identified by PW.2. PW.5 testified in part thus:

“On examining the corpse, I found a curved wound about 4 inches long on the front aspect of the left shoulder extending to the muscles below. This wound was stitched. There was another incissional wound measuring about 8 inches in length on the anterior abdominal wall. This wound was also stitched. These stitches were removed and the wounds explored. The intestines were grossly hyppraemic and there was dots of blood in most part of the intestines. A sharp object could have caused these injuries I described. The wounds could not be self inflicted even if the person was a mental case particularly the one on the left shoulder.

The injuries could not be caused by flying sharp objects but by direct hit by sharp object. The cause of death was excessive blood loss which led to shock.”

The appellant testified in his own defence and called no witness. His evidence which varies slightly from his extra-judicial statement reads in part thus:

“When one of the men slapped me, I retaliated by slapping him back. The other man took up a stick and started hitting me. I ran away but they pursued me. When the two men were pursuing me they were holding a stick and a jack. One person was holding a stick while the other was holding a jack. I ran near a store and collected two empty bottles packed there. As the men were pursuing me. I broke the bottles and the men went back. One of the men said they knew what they would do. They entered into a Peugeot car and drove off. The men were about 14 feet from me when I broke the bottle.

I did not use the bottle on any of them. The pieces of the bottles did not touch any of the men.

After the incident, I went to the Police Station, Umuahia. I reported that some people assaulted me along the road I did not report to the Police that any body had a wound.

I know that somebody had a wound the following day when the Police came to my house about 4 a.m. and arrested me and took me to the Police Station where they told me that the person with whom I fought the previous day has died. When I broke the bottles, the men ran back. I am not aware if any pieces of the bottles touched any of the men of the two people, I do not any of them who is dead.

The men fought me. I had nothing in me. I was annoyed when the man pointed at me that I killed my father. I picked the two bottles for my self defence. Everything happened quickly. I do not know anybody who was present when this incident happened. I had no intention of wounding or killing any of them.”